Too Human maker Silicon Knights will see Gears of War creator Epic Games in court after a judge approved the next step in the long-standing legal dispute between the two developers.
The lawsuit will go before a jury, according to legal documents obtained by Kotaku.
The Canadian studio alleges the four-year development period for Too Human was so long because Epic was misleading about what Unreal Engine 3 could accomplish. SK accuses Epic of prioritising the development of Unreal Tournament and Gears of War over helping it use the engine to make Too Human.
"Indeed," the court said, "SK cites to internal emails from Epic's officers instructing programmers that 'Gears [of War] comes first, so if you have any Gears tasks, drop work in the main branch and finish Gears tasks' (Email communication from Daniel Vogel (D.E. 559-8)) and that 'Right now, we are very much in 'will this help Gears ship faster? If not, punt' mode.' (Email communication from Michael Capps (D.E. 560-7))."
While the court has allowed the case to go in front of a jury, it dismissed a number of Silicon Knights' claims.
"When Epic first went public about our case to the press, they said that our claims were without merit," Silicon Knights boss Denis Dyack told Kotaku.
"Two separate federal court judges have now disagreed with Epic, and have ruled that the case does have merit.
"Silicon Knights has always wanted to have our focus be on making great games, not litigation. This ruling will allow us to have our day in court, before a jury, and to shine the light publicly on Epic's conduct. We are very confident the jury will see the truth behind Epic's actions."
Silicon Knights took legal action against Epic Games in July 2007. Epic said there had been plenty of access to SDKs, and deflected attacks by claiming Silicon Knights had shown Unreal Engine 3 to unauthorised parties. Epic also claimed SK used the engine to make a game for SEGA, breaching the terms of the licensing deal.
Xbox 360 exclusive Too Human launched in August 2008 to disappointing review scores, including a 6/10 from Eurogamer.