It can't be "technically" open because there's no technical definition of open. Under one side's definition, just having a lot of industry players collaborate on it in public makes it open (the definition you're using) whereas the other side says if its freedom is encumbered by patents then it's not open.

Open is a horribly diluted word and there's no way imaginable you can say anything is "technically" or "not technically" open.

This is the reason for the scare quotes.

h.264 is an open standard.

h.264 is also patent and royalty encumbered, which is the real issue here.

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.