In a recent document made available from the current in-progress lawsuit Gearbox Softwares legal representation states that the Asset Purchase Agreement between 3D Realms and Gearbox included excluded assets that 3D Realms still owned the entire rights to, this includes games that were currently in development, the list of which can be viewed here:
Now if I simply look at the definition for the word TENTATIVE:
What's that?! Not certain? Fixed? Provisional?
Doesn't that mean Duke Nukem Mass Destruction was a game they were legally permitted to create by the agreement that both parties agreed to considering that Duke Nukem Survivor is very clearly labeled as a tentative title for that game? The initial defense by 3D Realms was that Mass Destruction was the title they had chosen in place of Survivior which was clearly labeled as a tentative title for the game in development, therefore 3D Realms should win by Gearbox Softwares own admission.
The rest of the document can be viewed on scribd:
http://www.scribd.com/doc/264073349/Response-Objection