The web has been alight these past few weeks with the details of the Apple v. Samsung lawsuit. It’s been a unique opportunity to peer behind the curtain of how these two companies operate, as the trial seeks to answer the question: did Samsung copy Apple? But there’s actually another question that I think is much more interesting to the future of innovation in the technology industry: regardless of whether the courts say that Samsung copied Apple or not, would we all be better off if we allowed — even encouraged — companies to copy one another?

This is particularly relevant in the context of the Apple/Samsung trial, because it isn’t the first time Apple has been involved in a high-stakes “copying” court case. If you go back to the mid-1990s, there was their famous “look and feel” lawsuit against Microsoft. Apple’s case there was eerily similar to the one they’re running today: “we innovated in creating the graphical user interface; Microsoft copied us; if our competitors simply copy us, it’s impossible for us to keep innovating.” Apple ended up losing the case.

But it’s what happened next that’s really fascinating.

Apple didn’t stop innovating at all. Instead: they came out with the iMac. Then OS X (“Redmond, start your photocopiers“). Then the iPod. Then the iPhone. And now, most recently, the iPad. Given the underlying reason that Apple has been bringing these cases to court was to enable them to continue to innovate, it’s hard not to ask: if copying stops innovation, why didn’t Apple stop innovating last time they were copied? Being copied didn’t stop or slow their ability to innovate at all. If anything, it only seemed to accelerate it. Apple wasn’t able to rest on its laurels; to return to profitability, and to take the mantle they hold today of one of the technology industry’s largest companies, they had to innovate as fast as they could.

This point is worth considering more deeply in the debate over intellectual property protection. An excerpt from Kal Raustiala and Chris Sprigman’s book, The Knockoff Economy: How Imitation Sparks Innovation, that ran in last weekend’s Wall Street Journal, made exactly this point. The ingoing assumption for most folks when looking at industries is: without protection from copying, innovation stops. However, and somewhat counter-intuitively, Raustiala and Sprigman show that rather than stifling industries, there are plenty of examples where industries actually thrive because they are so open to copying. As they say: “Great innovations often build on existing ones — and that requires the freedom to copy.” Which even seems to be true at Apple — see this email from Apple exec Eddy Cue, advocating a change to Apple’s lineup of tablet products… as a result of him trying out a product that Samsung had released on to the market.

Some might say copying. But to me, it sounds like a perfectly functioning competitive market.

I’ve used Apple as the example here because it’s illustrative in showing how innovation hasn’t been stifled over time even when the patent system hasn’t ruled in their favor as a patent owner. But to be fair to Apple, they too have suffered plenty in their quest to innovate when they weren’t necessarily the first mover with the necessary patents under their control — a recent example being Nokia’s lawsuit against them regarding the iPhone.

Too often, it seems that companies fall back on the broken patent system when they can’t compete in the marketplace.

If Apple ends up winning this case against Samsung — and either stops Samsung from releasing their phones and tablets to the market, or charges them a hefty license fee to do so — does anyone really believe that the market will suddenly become more innovative, or that devices will suddenly become more affordable? Similarly, if Samsung wins, do you really believe that Apple will suddenly slow its aggressive development of the iPhone and iPad? It’s certainly not what happened last time they lost one of these cases.

Now, if you’re with me so far, then I don’t think it’s a leap to suggest that having these companies duke it out in court over “who might have copied who” is counterproductive. All these lawsuits flying around suggest that everyone is already copying each other, anyway. A better solution? Let’s have these companies solely focused on duking it out in the marketplace — where consumers, not courtrooms, make the decisions about innovation. In such a world, the best defense against copying isn’t lawsuits, but rather, to innovate at such a rate that your competition can’t copy you fast enough. That, to me, sounds like an ideal situation not just for consumers — but for the real innovators, too.