All this still has nothing to do with whether or not H.264 is open or not,what you're talking about is whether it's free or not,two different things.
If it were not open we wouldn't be debating whether or not developpers have to pay millions of dollars to develop an encoder or decoder because if it weren't open they wouldn't be able to develop an encoder or decoder period,not even for a trillion dollars.
Okay, I'll give you points for semantics if you'll give me $5 million dollars so I can write a codec for commercial use.