Don't forget AMD have a driver cheat to override the levels of tessellation and games are supporting it more and more now, it's not necessary NVidia's fault that they render games how the games ask rather than at a reduced level to compensate for hardware deficiencies.
That was only put in because of the way that Nvidia was paying devs to vastly over tesselate in order to make AMD look bad. It didn't matter to Nvidia that it was also hurting Nvidia owners that didn't have a top of the range card.
Besides, I'm not sure you can call it a cheat when it's clearly there in the drivers, and the user can decide to enable it or disable it.