It’s still what is usually called an “open standard”. Saying it is not open is confusing and misleading. If you don’t like the commonly used definition you are obviously free to redefine your terms, but you should mention that you are using an uncommon definition. Saying “patent and royalty encumbered” would be preferable because it’s not as misleading and much more precise as calling h.264 “not open”.

No, using a vague and loaded word like "open" at all is what is confusing and misleading. It's watered down to "Web 2.0" levels.