Yes I agree with this... But do keep this in mind when DirectX 11 was released ATI was still the only vendor supporting the feature - by the time that nVidia released drivers for either it was a standard feature in both OpenGL and DirectX. As I said before it is understandable that developers don't want to code specifically for each graphics card manufacturer but due to bugs in implementations of both OpenGL and Direct3D you pretty much end up doing that anyway. I am pretty sure thats why my game programmer friends prefer coding for consoles.
In regards to the story although I like the idea of a direct3D state tracker in the Gallium3D driver stack i do share the wine developers concerns that even if technically legal, Microsoft may feel obliged to see the thing taken to court or other wise use strong arm tactics.
Which is the better technology or what users want really isn't the issue here. Nobody particularly wants the sword of Damocles hanging over their heads.
Microsoft won't sue Linux because it would bring publicity to Linux and make Microsoft look like the bad guy, which they don't want any part of.
It's like Oracle. Since they sued Google, it made it in the newspapers (L.A. Times, one of the largest audiences, among others), and probably some major news stations. They were made the bad guy.
Microsoft wants to hide Linux (FOSS, moreover), not make it a big deal. They can't do this via lawsuits, and they are already on strict anti-trust strings..if they even considered suing individuals over D3D, then they would have anti-trust suits up their rear end so quick. If they were going to sue over things like that, they would have already sued over Wine, but like I keep saying, they pretend it doesn't exist.
I think you are partly right Microsoft won't attack immediately for the reasons you outlined. However if Linux becomes popular enough on the desktop that they can no longer pretend it isn't there then all bets are off. I don't expect legal action until Microsoft start perceiving that their bottom line is being effected.
Of course Linux/Free software may never get to the point where that happens - personally I will be disappointed if this ends up being the case.
Also Microsoft may also attack by Proxy using another company to do their dirty work (as the SCO case may well have been).
And no company wants to do the dirty proxy work; you'll end up like SCO.
Just for the sake of it, an interesting story on the history of hardware tessellation can be found here.