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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS


DALLAS DIVISION
GEARBOX SOFTWARE, LLC,
Plaintiff,
v.
APOGEE SOFTWARE, LTD. d/b/a
3D REALMS ENTERTAINMENT and
INTERCEPTOR ENTERTAINMENT APS,
Defendants.

CIVIL ACTION
NO. 3:14-CV-00710-L

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO


DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET OF INTERROGATORIES
Pursuant to Federal Rule of Civil Procedure 33, Plaintiff Gearbox Software, LLC (Gearbox)
hereby serves its Supplemental Answers Defendant Apogee Software, Ltd.s D/B/A 3D Realms
Entertainment (3DR) First Set of Interrogatories as follows:
OBJECTION TO INSTRUCTIONS AND DEFINITIONS
Gearbox objects to the instructions and definitions set forth in Defendants Interrogatories on the
grounds that they purport to impose response and production obligations beyond that required by the
Federal Rules of Civil Procedure. Gearbox will answer the Interrogatories propounded in accordance with
the Rules.
SUPPLEMENTAL ANSWERS TO FIRST SET OF INTERROGATORIES
INTERROGATORY NO. 1:
Identify and describe in detail all elements and aspects utilized,
incorporated in, embodied in or otherwise relating to the series of Duke Nukem games created by or for
Seller up to the Closing Date, including the Duke Nukem Trademarks and videogames currently titled Duke
Nukem Forever and Duke Nukem Begins as described in Exhibit 2.1, paragraph 1 of the APA.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 1 of 32

The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.
INTERROGATORY NO. 2:
Identify and describe in detail each character, copyrightable element
and trademark in the Duke Nukem Universe and Duke Nukem Game Property that were developed preclosing as described in Exhibit 2.2 of the APA.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 2 of 32

INTERROGATORY NO. 3:
Identify and describe in detail each character, copyrightable element
and trademark in the games identified as Duke Nukem 1, Duke Nukem 2, Duke Nukem 3D, Duke
Nukem 3D Live, Duke Nukem Critical Mass, and Duke Nukem Survivor, as identified in Exhibit 1 of the
APA-Supplement.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked nuclear symbol;
the character Duke Nukem and all video games that existed at the time of the APA and any works in
development at the time of the APA, including Duke Nukem Forever.
Stating further, and by way of specific example only, Gearbox identifies the character Doctor Proton, the
character General Graves, the name Duke Nukem, and the characters or group known as the Earth
Defense Force (or EDF).

INTERROGATORY NO. 4:
Identify all individuals that participated in the negotiations, drafting
and execution of the APA and the APA-Supplement and provide a summary of the knowledge that each
such individual possesses about such participation.
ANSWER:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 3 of 32

Heptig, J. Pat
Heptig Law Group, Ltd.
15050 E. Beltwood Pkwy.
Addison, Texas 75001
(214) 451-2514
Randy Pitchford
Brian Martel
Gearbox
c/o Gearbox Counsel
Paul Putnam
5909 London Court
Dallas, Tx 75252
214-449-0566
INTERROGATORY NO. 5:
Identify and describe in detail each element and aspect incorporated
and/or embodied in or otherwise relating to the series of Duke Nukem games created up to the closing
date, as identified in Exhibit 2.1, paragraph 1 of the APA.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trademarks and trade names related to the Duke Nukem Universe
including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and 2.7(a)(ii)(C)(1), the
assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further answer, all intellectual
property in the Duke Nukem Universe was transferred and is too extensive to list here. Also, this
information is equally available to Apogee as Apogee is the Seller that actually created the Duke Nukem
materials that existed prior to the Closing Date and would also have knowledge about all aspects of the
Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under the APA. In
addition, by way of specific example only, Gearbox identifies the trademarked Nuclear symbol; the
character Duke Nukem and all video games that existed at the time of the APA and any works in
development at the time of the APA, including Duke Nukem Forever.

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 4 of 32

Stating further, and by way of specific example only, Gearbox identifies the character Doctor Proton, the
character General Graves, the name Duke Nukem, and the characters or group known as the Earth
Defense Force (or EDF).

INTERROGATORY NO. 6:
Identify and describe in detail all game characters, game design
documents, story lines, story themes, plots, game scripts/dialog, character names and likenesses, and all
trademarks and trade names directly related to the Duke Nukem Universe, as identified in Exhibit 2.1
paragraph 2 of the APA.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate what assets transferred from 3DR to Gearbox as a result of that transaction.
The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional manes, trade
names, registered and unregistered trademarks, service marks, and applications, all registered and
unregistered copyrights in both published and unpublished works and all know-how, trade secrets,
confidential and proprietary information, technical information, and all rights in internet websites and
domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items identified
in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or otherwise related
to the series of Duke Nukem games created by or for 3DR. The elements and aspects include all Duke
Nukem game characters, game design documents, story lines, story themes, plots, game script/dialogue,
character names and likenesses, and all trade marks and trade names related to the Duke Nukem
Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.
Stating further, and by way of specific example only, Gearbox identifies the character Doctor Proton, the
character General Graves, the name Duke Nukem, and the characters or group known as the Earth
Defense Force (or EDF).

INTERROGATORY NO. 7:
Identify and describe in detail all trademarks, service marks, and
trade names used in connection with or associated with the Duke Nukem Universe, as identified in Exhibit
2.1, paragraph 3 of the APA.

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 5 of 32

ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence.
Subject to the foregoing objections and without waiving them, the APA, and the APA Supplement speak for
themselves and demonstrate evidence of what assets transferred from 3DR to Gearbox as a result of that
transaction. The Duke Nukem assets that passed from 3DR to Gearbox include all assumed fictional
manes, trade names, registered and unregistered trademarks, service marks, and applications, all
registered and unregistered copyrights in both published and unpublished works and all know-how, trade
secrets, confidential and proprietary information, technical information, and all rights in internet websites
and domain names as described in Section 3.7 of the APA. Furthermore, the assets include all items
identified in Exhibit 2.1 including all elements and aspects utilized, incorporated in, embodied in or
otherwise related to the series of Duke Nukem games created by or for 3DR. The elements and aspects
include all Duke Nukem game characters, game design documents, story lines, story themes, plots, game
script/dialogue, character names and likenesses, and all trade marks and trade names related to the Duke
Nukem Universe including all items described in Exhibits 2.7(a)(ii)(A), 2.7(a)(ii)(A)(1), 2.7(a)(ii)(C) and
2.7(a)(ii)(C)(1), the assets identified in Exhibit 3.6, and net names described in Exhibit 3.7. For further
answer, all intellectual property in the Duke Nukem Universe was transferred and is too extensive to list
here. Also, this information is equally available to Apogee as Apogee is the Seller that actually created the
Duke Nukem materials that existed prior to the Closing Date and would also have knowledge about all
aspects of the Duke Nukem Universe and rights that existed at the time of their transfer to Gearbox under
the APA. In addition, by way of specific example only, Gearbox identifies the trademarked Nuclear
symbol; the character Duke Nukem and all video games that existed at the time of the APA and any works
in development at the time of the APA, including Duke Nukem Forever.
Stating further, Gearbox also identifies the Duke Nukem mark.

INTERROGATORY NO. 8:
Identify and describe your definition of the term non-AAA Platform
versions of the excluded games listed Exhibit 1, as that term is utilized in paragraph 5 of the APA
Supplement.
ANSWER:
Non-AAA platform versions of the excluded games listed in Exhibit 1 of the APA means
game versions not designed or developed for use in conjunction with Microsoft X-Box, Sony Play Station,
Nintendo, Wii, PC or Mac as well as certain HTML or other on-line versions.
INTERROGATORY NO. 9:
Identify all facts that you believe support your contention that
Defendants, or either of them, have infringed the Allegedly Infringed Marks. State the name, address and
phone number of each person with knowledge of such facts, including the facts on which they have
knowledge and identify each document which you allege support such facts.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 6 of 32

that was transferred to Gearbox under the APA, including the trademarked nuclear symbol. Further,
discovery in this matter has just begun and Gearbox has requested the depositions of 3DR and Interceptor
to better understand the extent to which these defendants have violated the terms of the APA and the
intellectual property rights Gearbox acquired under the APA. Gearbox will supplement this answer as
Defendants provide deposition testimony or other discovery responses identifying additional breaches or
infringement.
Persons with knowledge of Defendants breaches include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel
Heptig, J. Pat
Heptig Law Group, Ltd.
15050 E. Beltwood Pkwy.
Addison, Texas 75001
(214) 451-2514
Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn
declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber
has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 7 of 32

was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former
counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.

INTERROGATORY NO. 10:


Identify all facts that you believe support your contention that
Defendants, or either of them, have infringed Plaintiffs Copyrights. State the name, address and phone
number of each person with knowledge of such facts, including the facts on which they have knowledge
and identify each document which you allege support such facts.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
that was transferred to Gearbox under the APA, including copyrighted characters and the trademarked
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 8 of 32

nuclear symbol. Further, discovery in this matter has just begun and Gearbox has requested the
depositions of 3DR and Interceptor to better understand the extent to which these defendants have violated
the terms of the APA and the intellectual property rights Gearbox acquired under the APA. Gearbox will
supplement this answer as Defendants provide deposition testimony or other discovery responses
identifying additional breaches or infringement.
Persons with knowledge of Defendants breaches include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel
Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn
declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber
has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
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OF INTERROGATORIES Page 9 of 32

Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former


counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke Nukem
Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and protectable
elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific examples of
Defendants infringement contained within the Mass Destruction title are contained in Gearboxs response
to Interrogatory No. 11.
INTERROGATORY NO. 11:
For each of the Allegedly Infringing Works, identify the material that
you believe infringes Plaintiffs Copyrights and identify the corresponding material contained in each of
Plaintiffs Copyrights.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
that was transferred to Gearbox under the APA, including copyrighted characters and the trademarked
nuclear symbol. Further, discovery in this matter has just begun and Gearbox has requested the
depositions of 3DR and Interceptor to better understand the extent to which these defendants have violated
the terms of the APA and the intellectual property rights Gearbox acquired under the APA. Gearbox will
supplement this answer as Defendants provide deposition testimony or other discovery responses
identifying additional breaches or infringement.
Stating further, based on the information currently available through discovery in this matter,
Defendants developed and created an infringing product, to be titled Duke Nukem Mass Destruction
which infringed numerous protected and protectable elements of the Duke Nukem IP and the Duke Nukem
Universe held exclusively by Gearbox, and which were fully transferred from Defendant Apogee/3DR to
Gearbox upon execution of the APA in 2010. By way of specific examples, but without limitations, Gearbox
asserts that Defendants Mass Destruction title contained at least the following material which directly
infringed Gearboxs Duke IP:
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 10 of 32

The Nuclear Symbol (as it appears in Defendants infringing work):

By way only of example, below is a depiction of the Trademarked Nuclear Symbol (No. 2,435,065 or the
065 Mark) as it appears in some works of which Plaintiff holds valid registered Copyrights, including: PA1782-911, PA1-812-111, PA1-814-677:
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 11 of 32

See also the below excerpts from the actual 065 Registration:
Generated on: This page was generated TSDR on 2615-61-15 12:50:46 EST
Mark:

US Serial Number. 7591035:3


US Registration Number. 2435065

Application Fling Date: Feb. 03, 2030


Registration Date: Mar. 13, 20:11

Register Principal
Mark Type: Trademark
Status: The registration has been renewed.
Status Date: Aug. 16. 2611
Publication Date: Dec. 113, 2666

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 12 of 32

Goods and Services


Note: The folt-W.no symbols indicate that the regislyantrowner has amended the 9o::1s/services:
Brackets [..] indicate deleted goods/semi:pm
Double parenthesis (Li.} identify any goods/servicesnot-aimed in a Section 16 affidavit of incontesrabilit,r. and
Asterisks '..' identify adenional (new) wording in the goxisisenroes.
For. I Computer and Ade products. namely. video game machines for use with televisions. video garde canridges: video game tape
cassettes; pre-recorded videotapes featuring computer games and computer game characters; motion piellre films featuring video
games and video game characiers; television game programs featuring computer games and computer game characters: television
game corsso1..; computer game analog controllers; cornpmer game joysticks; i nen Fur y cards]. computer game software; [computer
game discs] computer game programs; {computer game cassettes. computer game tapes, computer game cartridges, composer
software featuring computer games that can he downloaded through a global computer network; multimedia software
Jed on a
CD-ROM featuring computer games; computers; computer hardware and computer firmware [muse in operating compoler garnw
computer mouse pads ]
Ink:math:nal Class/es): 069 - Primary Class

U.S Class(es}: 621_ 023.02$, 636, OM

Class Status: ACTIVE


Basis: 1(a)
First Use: Feb. 1966

Use in Commerce: Feb. 1600

Current Owner(s) Information


Owner Name: GEARBOX SOFTWARE. LLC.
Owner Address: 161 EAST PARK BLVD, SUITE 1206
PLANO. TEXAS 75074
UNITED STATES
Legal Entity Type: UNIFIED LIABILITY COMPANY

State or Country Where TEXAS


Organtred:

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 13 of 32

The character Duke Nukem (as it appears in Defendants infringing work):

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 14 of 32

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 15 of 32

By way only of example, below is the character Duke Nukem as he appears in some works of which
Plaintiff holds valid registered Copyrights, including: PA1-782-911, PA1-812-111, PA1-814-677:

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 16 of 32

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 17 of 32

The character General Graves (as he appears in Defendants infringing work):

'Word up. I'm general graves. The shit has hit the fan BIG TIME.
Herds the key -Jo the White House, now rendezvous with the
Presider; ASAP!"

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 18 of 32

By way only of example, below is the character General Graves as he appears in some works of which
Plaintiff holds valid registered Copyrights, including: PA1-782-911, PA1-812-111, PA1-814-677:

Ti
a-

..dr

fl
o

11 Ili

General Graves: Duke, I know this is hard for you, but play it cool for now

General Graves: Excellent work taking out the mothership and getting down here,
Duke. I'm only sorry our EDF soldiers didn't make it, but I'll bear that burden and inform
their families personally.

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 19 of 32

The character Doctor Proton (as he appears in Defendants infringing work):

By way only of example, below is the character Doctor Proton, as he appears in some works of which
Plaintiff holds valid registered Copyrights, including: PA1-922-835, PA1-782-911, PA1-812-111, PA1-814677:
I

ii

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 20 of 32

The name Duke Nukem (as it appears in Defendants infringing work):

By way only of example, below is the trademarked name Duke Nukem (No. 2,578,916) as it appears in
some works of which Plaintiff holds valid registered Copyrights, including: PA1-782-911, PA1-812-111,
PA1-814-677:

Further, taken as a whole, Defendants use of protected and protectable marks and expressive
audiovisual and/or artistic elements of Gearboxs Duke IP (specifically including but not limited to those
described above) in the Mass Destruction title has resulted in a product likely to confuse consumers as to
the source of the product.
Additionally, Defendants use of protected and protectable marks and expressive audiovisual
and/or artistic elements of Gearboxs Duke IP (specifically including but not limited to those described
above) in Mass Destruction has resulted in a product substantially similar to the Duke IP owned by
Gearbox that is akin to literal copying. In Defendants infringing work, the character Duke Nukeman
overly masculine and wisecracking protagonistfights off an invading army of evil aliens in an attempt to
save the world from peril or destruction at the hands of said aliens and the villainous Doctor Proton, a wellknown character from the Duke Nukem Universe who has appeared in the videogames Duke Nukem and
Duke Nukem Forever. When taken together and in the context of the Duke Nukem Universe and IP, these
copied elements clearly demonstrate infringement. Indeed, in each prior iteration of Duke Nukem games
specifically including but not limited to Duke Nukem, Duke Nukem II, Duke Nukem 3D, and Duke Nukem
Foreverthe character Duke Nukem has been charged with fighting off an evil alien army and saving the
world from certain peril or destruction.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 21 of 32

INTERROGATORY NO. 12:


Identify each written and oral communication that you and/or any of
your attorneys and agents have had with any agent or representative of Defendants, or either of them.
Include in you answer the name, address and phone number of each party to each such identified
communication and identify each document which evidences each such communication.
ANSWER:
Gearbox objects to interrogatory on the grounds that it is overly broad, unduly burdensome
and seeks information that is not calculated to lead to the discovery of admissible evidence and information
that is equally available to Defendant 3DR. Subject to the foregoing objections and without waiving the,
Randy Pitchford had numerous conversations with Scott Miller and George Broussard and it would be
unreasonable to recite them all here. Further Paul Putnam and Pat Heptig also had discussions about the
APA. Further, Gearbox objects to this interrogatory as it is not limited in any way to the subject matter of
this lawsuit. Mr. Pitchford has known and has previously worked with Mr. Miller and Mr. Broussard for
many years and it would be unreasonable to require Mr. Pitchford, for example, to recite every conversation
he has ever had with 3DRs officers over the years.
INTERROGATORY NO. 13:
With respect to U.S. Copyright Registration No. PA 1-782-911,
identify and describe in detail all material excluded from the copyright claim including, but not limited to,
pre-existing music, and pre-2010 Duke Nukem games, and all new material included in the copyright
claim including, but not limited to, audiovisual material, music and script for videogame, as identified in the
Registration.
ANSWER:
Gearbox objects to this interrogatory on the grounds that U.S. Copyright Registration No.
PA 1-782-911 in the name of Gearbox speaks for itself. Gearbox further objects to this request on the
grounds that the request is overbroad and unduly burdensome and harassing and could require a
burdensome and detailed comparison of the pre-existing works and the pre-2010 Duke Nukem games to
those created afterwards. Gearbox acquired all copyrights to all pre-2010 games under the APA. It
therefore further objects to this request as burdensome and not calculated to lead to the discovery of
admissible evidence as it is immaterial to this action whether the rights Gearbox asserts were pre-2010
rights acquired under the APA or rights it created after the 2010 APA.
INTERROGATORY NO. 14:
With respect to U.S. Copyright Registration No. PA 1-812-111,
identify and describe in detail all material excluded from the copyright claim including, but not limited to,
pre-existing music, and pre-2010 Duke Nukem games, and all new material included in the copyright
claim including, but not limited to, all other cinemagraphic material, additional new footage, production as a
motion picture, new narration, editing, new music, new script, as identified in the Registration.
ANSWER:
Gearbox objects to this interrogatory on the grounds that U.S. Copyright Registration No.
PA 1-812-111 in the name of Gearbox speaks for itself. Gearbox further objects to this request on the
grounds that the request is overbroad and unduly burdensome and harassing and could require a
burdensome and detailed comparison of the pre-existing works and the pre-2010 Duke Nukem games to
those created afterwards. Gearbox acquired all copyrights to all pre-2010 games under the APA. It
therefore further objects to this request as burdensome and not calculated to lead to the discovery of
admissible evidence as it is immaterial to this action whether the rights Gearbox asserts were pre-2010
rights acquired under the APA or rights it created after the 2010 APA.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 22 of 32

INTERROGATORY NO. 15:


With respect to U.S. Copyright Registration No. PA 1-814-677,
identify and describe in detail all material excluded from the copyright claim including, but not limited to,
pre-existing music, and pre-2010 Duke Nukem games, and all new material included in the copyright
claim including, but not limited to, all other audiovisual material, as identified in the Registration.
ANSWER:
Gearbox objects to this interrogatory on the grounds that U.S. Copyright Registration No.
PA 1-814-677 in the name of Gearbox speaks for itself. Gearbox further objects to this request on the
grounds that the request is overbroad and unduly burdensome and harassing and could require a
burdensome and detailed comparison of the pre-existing works and the pre-2010 Duke Nukem games to
those created afterwards. Gearbox acquired all copyrights to all pre-2010 games under the APA. It
therefore further objects to this request as burdensome and not calculated to lead to the discovery of
admissible evidence as it is immaterial to this action whether the rights Gearbox asserts were pre-2010
rights acquired under the APA or rights it created after the 2010 APA.
INTERROGATORY NO. 16:
Identify all facts which support your allegation that 3DR provided
Gearboxs DUKE NUKEM product to Interceptor as alleged in paragraph 33 of your Complaint. In your
answer, also state in detail what the DUKE NUKEM product provided to Interceptor was. State the name,
address and phone number of each person with knowledge of such facts and identify each document which
evidences such facts.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
that was transferred to Gearbox under the APA, including copyrighted characters and the trademarked
nuclear symbol. Further Mike Nielson acknowledged that there was indeed an Interceptor Duke Nukem
project partly funded under a Danish Government Accelerator Program and specifically acknowledged
that 3DR entered into some license agreement with another party, presumably Interceptor, based on the
exchanges, to work on Duke Nukem games without Gearboxs consent. Further, discovery in this matter
has just begun and Gearbox has requested the depositions of 3DR and Interceptor to better understand the
extent to which these defendants have violated the terms of the APA and the intellectual property rights
Gearbox acquired under the APA. Gearbox will supplement this answer as Defendants provide deposition
testimony or other discovery responses identifying additional breaches or infringement.
Persons with knowledge of these facts include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 23 of 32

Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
INTERROGATORY NO. 17:
Identify all facts which support your allegation that Interceptor,
without permission or consent of Gearbox, has used and continues to use material covered by the Duke
Nukem Copyrights in the development, creation, sale, promotion, and distribution of its videogame entitled,
Duke Nukem: Mass Destruction, as alleged in paragraph 45 of your Complaint. State the name, address
and phone number of each person with knowledge of such facts and identify each document which
evidences such facts.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
that was transferred to Gearbox under the APA, including copyrighted characters and the trademarked
nuclear symbol. Further, discovery in this matter has just begun and Gearbox has requested the
depositions of 3DR and Interceptor to better understand the extent to which these defendants have violated
the terms of the APA and the intellectual property rights Gearbox acquired under the APA. Gearbox will
supplement this answer as Defendants provide deposition testimony or other discovery responses
identifying additional breaches or infringement.
Persons with knowledge of Defendants breaches include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 24 of 32

(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel
Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn
declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber
has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former
counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 25 of 32

INTERROGATORY NO. 18:


Identify all facts which support your allegation that Duke Nukem:
Mass Destruction is identical and/or substantially similar to the materials protected by the Duke Nukem
Copyrights and constitutes an unauthorized derivative work, as alleged in paragraph 45 of your Complaint.
State the name, address and phone number of each person with knowledge of such facts and identify each
document which evidences such facts.
ANSWER:
Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, the
Declarations of Scott Miller and George Broussard attached to the Complaint as Exhibit D outline
admissions that 3DRs actions breached the APA. Moreover, based on the information available to
Gearbox at this time, it appears that Interceptor was responsible for the Duke Nukem: Mass Destruction
teaser website Alloutofgum.com which made specific use of the Duke Nukem Universe intellectual property
that was transferred to Gearbox under the APA, including copyrighted characters and the trademarked
nuclear symbol. Further, at the time of the APA there was no game titled Duke Nukem: Mass Destruction.
Further, discovery in this matter has just begun and Gearbox has requested the depositions of 3DR and
Interceptor to better understand the extent to which these defendants have violated the terms of the APA
and the intellectual property rights Gearbox acquired under the APA. Gearbox will supplement this answer
as Defendants provide deposition testimony or other discovery responses identifying additional breaches or
infringement.
Persons with knowledge of Defendants breaches include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940

Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn


declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 26 of 32

Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber


has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former
counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same and creating a product that is
identical and/or substantially similar to the materials protected by the Duke Nukem IP, of which Gearbox is
the owner. Further and more specific examples of Defendants infringement contained within the Mass
Destruction title are contained in Gearboxs response to Interrogatory No. 11.

INTERROGATORY NO. 19:


Identify each instance of copying, distribution, and/or use by
Defendant Interceptor which has violated Gearboxs exclusive rights in the Duke Nukem Copyrights, as
alleged in paragraph 45 of your Complaint. State the name, address and phone number of each person
with knowledge of such copying, distribution and/or use and identify each document which evidences such
copying, distribution and/or use.
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 27 of 32

ANSWER: Gearbox objects to this interrogatory on the grounds that it purports to require Gearbox to
marshal all of its evidence in support of its case in this interrogatory answer and therefore the request is
unduly burdensome and overbroad. Subject to these objections and without waiving them, based on the
information available to Gearbox at this time, it appears that Defendant Interceptor was responsible for the
Duke Nukem: Mass Destruction teaser website, Alloutofgum.com, which made specific use of the Duke
Nukem Universe intellectual property that was transferred to Gearbox under the APA, including copyrighted
characters. In addition, Interceptors teaser website touted the release of a new game, Duke Nukem: Mass
Destruction. At the time of the APA, there was no game titled Duke Nukem: Mass Destruction. Further,
discovery in this matter has just begun and Gearbox has requested the depositions of 3DR and Interceptor
to better understand the extent to which these defendants have infringed Gearboxs copyrights. Gearbox
will supplement this answer as Defendants provide deposition testimony or other discovery responses
identifying additional infringement.
Persons with knowledge of Defendants actions include:
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940

Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.

INTERROGATORY NO. 20:


Describe in detail the creation and development of each of the
Allegedly Infringed Works. Include in your answer a precise date of creation for each of the Allegedly
Infringed Works, an identification of each person who participated or collaborated in any way in creation of
the Allegedly Infringed Works, and a description of what subject matter each person created.

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
OF INTERROGATORIES Page 28 of 32

ANSWER:
Gearbox objects to this request as overly broad and unduly burdensome and not
reasonably calculated to lead to the discovery of admissible evidence. Furthermore, with respect to the
specific development process of certain works that was undertaken and completed prior to the execution of
the APA and the transfer of the Duke IP to Gearbox in 2010, such information is at least equally, if not
better known to 3DR.
INTERROGATORY NO. 21:
Describe in detail the factual basis for Plaintiffs assertion that the
alleged copyright infringement by Defendant was willful. In your answer, state the name, address and
phone number of each person with knowledge of the facts set forth in your response and identify each
document which evidences the facts set forth in your response.
ANSWER:
At this time Gearbox relies upon the Declarations of Scott Miller and George Broussard
attached to the Complaint as Exhibit D as well as the fact that Mr. Schreiber knew that Gearbox owned the
rights to the Duke Nukem games and Intellectual Property before allowing Interceptor to publish the teaser
website AlloutofGum.com in 2014.
Broussard, George
Scott Miller
Apogee Software, Ltd
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Frederick Schreiber
Nielsen, Mike
Interceptor Entertainment ApS
c/o Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(214) 210-5940
Randy Pitchford
Gearbox
c/o Gearbox Counsel

Stating further, 3DRs principalsScott Miller and George Broussardexecuted a sworn


declaration stating that Gearbox is the exclusive owner of the Duke Nukem IP and that the development
effort behind Duke Nukem: Mass Destruction was both unauthorized and a material infringement of
Gearboxs intellectual-property rights. Additionally, Defendant Interceptors principalFrederik Schreiber
has already testified in this case that he was aware, as far back as 2010, that Gearbox owned the Duke
Nukem IP. See e.g., 2014-09-10 Deposition of Frederik Schreiber at 24:18-22, 118:5-14, 131:19-25; see
also Apogee 10969 (e-mail exchange between Schreiber and Putnam concerning Duke Nukem project
wherein Schreiber notes that Gearbox purchased the Duke Nukem IP). Moreover, 3DRs principal, Scott
GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
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Millerwhen approached by Schreiber in September 2010, seeking permission to work on a Duke Nukem
projecttold Schreiber that Gearbox owns the rights to the Duke Nukem IP and, moreover that he (Miller)
was not legally able to give Schreiber permission to work on a Duke-Nukem related project. Int-0088.
Moreover, Mike Nielsen, Principal of both 3DR and Interceptor, directly confirmed that Defendants had
flagrantly violated the APA and were infringing on Gearboxs rights to the Duke IP when he testified that the
development of Duke Nukem: Mass Destruction was done by Interceptor entirely from scratch. August 8,
2014 Deposition of Mike Nielsen at 102:13-23, 125:7-20, 126:20-25. Moreover, in October, 2013 Scott
Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back the Duke
Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the Duke
Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Moreover, Frederik Schreiberprincipal of Defendant Interceptore-mailed Gearboxs former
counsel PJ Putnam in October 2010 and stated that he (Schreiber) was aware that Gearbox had purchased
the Duke Nukem IP. See Apogee 10969. Moreover, Schreiber has clearly testified in this case that
Gearbox owns Duke Nukem. Schreiber Depo. at 24:18-22, 118:5-14, 131:19-25. Additionally, in October,
2013 Scott Miller and Frederik Schreiber discussed Interceptor and 3DRs interest in and need to buy back
the Duke Nukem IP from Gearbox, thereby confirming their awareness that Gearbox owns all rights to the
Duke Nukem IP and confirming their understanding that the APA transferred such rights. Int-0235.
Additionally, after finding out that the teaser alloutofgum.com website had been identified on Gearbox
forums, Interceptors principals Schreiber and Ibrahimi stated that they should lay low, apparently
recognizing the fact that Gearbox would become aware of their infringement. Int-0235. Additionally,
Interceptors principals, Schreiber and Ibrahimiduring an August 2013 e-mail exchangediscussed their
desire to grow on our own IPnot on Duke [Nukem] which [Miller and 3DR] might never get back. Int0150. This conversation starkly illustrates Interceptors knowledge that 3DR had relinquished all rights in
the Duke IP to Gearbox as a result of executing the APA.
Additionally, after reviewing the videogame being created and marketed by Defendants, Duke
Nukem Mass Destruction, it is clear that Defendants wrongfully incorporated numerous protected and
protectable elements of Gearboxs Duke Nukem IP, thereby infringing same. Further and more specific
examples of Defendants infringement contained within the Mass Destruction title are contained in
Gearboxs response to Interrogatory No. 11.

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
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Dated: April 10, 2015

Respectfully submitted,

By:

/s/ Stephen E. Fox


Stephen E. Fox
Texas Bar No. 07337260
sfox@polsinelli.com
Jonathan E. Clark
Texas Bar No. 24069515
jclark@polsinelli.com
POLSINELLI PC
2501 N. Harwood Street, Suite 1900
Dallas, Texas 75201
Telephone: 214.397.0030
Facsimile: 214.397.0033
Attorneys for Plaintiff
Michael E. Schonberg
Texas State Bar No. 00784927
mike.schonberg@tklaw.com
Megan Dredla Hoyt
Texas State Bar No. 24050530
megan.hoyt@tklaw.com
THOMPSON & KNIGHT LLP
One Arts Plaza
1722 Routh Street, Suite 1500
Dallas, Texas 75201
Telephone: 214.969.1304
Facsimile: 214.880.3262
ATTORNEYS FOR PLAINTIFF
GEARBOX SOFTWARE, LTD.

GEARBOX SOFTWARE, LLCS SUPPLEMENTAL ANSWERS TO DEFENDANT APOGEE SOFTWARE, LTD.S FIRST SET
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document has been served via electronic mail, upon
all counsel of record, as identified below, on April 10, 2015:
George R. Schultz
rschultz@grspc.com
Nicole R. Marsh
nmarsh@grspc.com
Schultz & Associates, P.C.
5400 LBJ Freeway, Suite 1200
Dallas, Texas 75240

/s/ Stephen E. Fox


Stephen E. Fox

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