From a purely legal point of view, the person that said there may be other reasons why ebtech did not sue is probably corect. The fact is that lawsuits, especially lawsuits of this nature that require extensive expert testimony, are very expensive.
The assumption though is that the risk is in losing the lawsuit and thus the investment of time and money. The fact is that Ebtech could win the lawsuit in principal but fail to establish sufficient damages and thus never recoup the money.
The damages issue is complicated. It will necessarily involve whether or not there are actual damages or punitive or compensatory etc. damages.What, is the measure or damages? Is it the loss of business and if so, how is that calculated, is it statutory and if so, what is the fomula and will that amount to enough to justify a lawsuit. Does the winning company, if they proove infringement, automoatically get paid lots of money. The answer is no. Merely proving infringement may be a victory in name name only but not in dollars and cents. In such a case, the cost of the lawsuit can exceed the amount of recoverable damages by a significant amount.
Therefore, it is not a matter of winning or losing that determines whether or not a company will sue in such a situation. They may know they can win, however, the cost of winning can easily bee too high and in a case such as the Ebtech vx. Behringer case, the lawsuit's only function may be to prove a point that is blatantly obvious to everyone.
In the end, it is a business decision. Does a small company wan to spend tens of thousands of dollars if not hunreds of thousands to win a victory in name only.